THE outbreak of the H1N1 flu in India has brought to the fore the issue of universal health care. Even as the government went on overdrive to showcase to the world that everything was under control, the debate on public health gathered momentum and the dominant view was that the focus had to be on having a law that recognised and operationalised the right to health care.
Recently, the United Progressive Alliance (UPA) government passed a slew of Bills, including one on the right to education, and it intends to legislate on food security as well. However, its silence on the National Health Bill, 2009, a draft of which was ready in January 2008, is perplexing, to say the least. The draft proposed by the Ministry of Health and Family Welfare (MoHFW) has not moved much beyond the proposal stage despite positive feedback from most State governments and the Jan Swasthya Abhiyaan (JSA), or the Indian Peoples Health Movement.
The JSA had endorsed long ago the need for a law that would recognise and operationalise the right to health care. It felt that the law should also deal with issues relating to the system, for instance, regulation of the private medical sector, guaranteeing of universal and free access to health care and abolition of user fees.
Abhay Shukla, joint convener of the JSA and a member of the task force that drafted the Bill, said the Bill should raise issues of accountability of the private medical sector and also allow a reorganisation of the health system.
The Bill raises a gamut of issues relating to health care, including those of quality, equity, accessibility, affordability and, above all, accountability. It raises serious ethical and qualitative issues and underscores clearly that access to free, universal and quality health care cannot be left to the private medical sector; that governments had a crucial role in providing health care and in regulating the private sector; and that health is a permanent, long-term entitlement and not a one-time welfare measure.
The definition of the Bill sets the agenda. It seeks to provide for protection and fulfilment of rights in relation to health and well-being, health equity and justice, including those related to all the underlying determinants of health as well as health care, and for achieving the goal of health for all. Special care has been taken to ensure that the rights of States have not been encroached on in public health functions.
It says that within one year of the Act coming into force, the Central government shall adopt and implement national strategies and plans of action for ensuring access to underlying determinants of health: food, water, sanitation and housing. It also states that in the light of the framework laid down in the Act, the Centre shall review and, if necessary, redraft the existing schemes and programmes, and within six months thereafter the State governments shall, accordingly, adopt and implement compatible State-level strategies and plans of action through their local bodies.
The draft Bill also provides for the collective and individual rights of people not only to health care but to other entitlements such as water, food, sanitation and housing. It includes the rights of users of health care. It states: No person shall be denied, under any circumstance, including inability to pay the requisite fee or charges, prompt and necessary emergency medical treatment and critical care, including emergency obstetric treatment and care by any health care provider, establishment or facility including private provider, establishment or facility that is qualified and certified to provide such care or treatment.
The Bill also addresses the critical area of medico-legal cases, where, owing to the legal complications involved, timely treatment was often delayed. The draft says that in such a case, no health care provider or health care establishment shall delay treatment merely on the grounds of receiving police clearance or a police report.
Five years ago, the JSA, along with the National Human Rights Commission (NHRC), organised a series of public hearings on health. The recommendations from this exercise included the enactment of a national law for recognising and operationalising the right to health care. The JSA reiterated this demand in its Peoples Health Manifesto before the 2009 Lok Sabha polls.
The Bill also takes into account the international thinking on health rights elaborated by the United Nations Committee on Economic, Social and Cultural Rights (CESCR). The committee specifically recommends that states should consider adopting a framework law to operationalise their right to health national strategy. India is a signatory to the International Covenant on ESCR wherein Article 12 confers the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
Shruti Pandey, a senior consultant working on the legal framework for health at the National Health Systems Resource Centre (the technical resource centre of the National Rural Health Mission) and one of the co-drafters of the Bill, said the draft looked at the determinants of health, including food, sanitation, water and housing.
The Bill, a framework law, recognises health as a State subject and identifies the obligations of the Centre and the States in terms of legal as well as policy interventions. The existing health laws of the States would not get redundant. This Bill essentially sets the standards and the obligatory framework for other laws as well, said Shruti Pandey.
The proposed law, she said, impinged on matters contained in all the three lists in the Constitution and yet was not in conflict in that it related to a larger mandate of social and economic planning as related to health. The draft Bill lays down certain general and core obligations of the Centre and the States. The general obligations include undertaking appropriate and adequate budgetary measures; taking steps to address the biomedical determinants as well as the underlying socio-economic, cultural and environmental determinants of health; and providing free and universal access to health care services to ensure that there is no denial of health care directly or indirectly by any health care provider, public or private.
Governments, it says, have an immediate duty to make health a priority for the most vulnerable and marginalised persons and groups. This has led to fears of a targeted approach to health, though for the most part in the Bill the stress is on the provision of universal health care.
One interesting area that Shruti Pandey points to is the obligation of governments to adopt the least restrictive alternative in situations where the imposition of limitations on the right to health of individuals may become necessary in the interest of public health. She says that often in potential threat situations involving epidemics, instead of extreme measures such as isolation or quarantining, some least-restrictive option can be resorted to. The option should not be ruled out even as public health remains the larger interest.
The more important core obligations include the ensuring of equitable distribution of and access to 1) essential health facilities, goods, drugs, services and conditions to all, especially to vulnerable and marginalised groups; 2) minimum essential food which is nutritionally adequate and safe, to ensure freedom from hunger and malnutrition to everyone; 3) adequate supply of safe water; 4) sanitation and sewerage; and 5) basic housing with dignity. One very important core obligation is to devise, adopt, implement and periodically review the health policies, strategies and plans of action on the basis of epidemiological, sociological and environmental evidence, addressing the health concerns of the whole population.
The draft also has a chapter on disputes resolution and redress mechanisms through public hearings at primary health centres (PHCs), which have to be held twice a year and shall be open to all citizens. The grievance redress mechanism at the institutional level for users in private and government-controlled health establishments includes the setting up of special district courts, where the presiding officers would be sensitised to deal with health-related complaints, and the provision of a detailed list of causes of action for complaints, accompanied with reliefs and remedies to be handed out by the courts as well.
The overall implementation and monitoring would be carried out by a national health board and State health boards, one of the functions of which will be formulating and adopting a national or State policy on health and ensuring that there is a revision every five years.
Referring to some of the larger systemic changes that would be required to make the right a reality, Amarjeet Sinha, Joint Secretary, MoHFW, said there was a need to address mortality and morbidity as they existed in regions. He also felt that the PHCs needed to be geared up to address a range of needs. The recently released second Common Review Mission of the NRHM has identified several areas on which the health system needs to be strengthened.
The Bill has been lying in cold storage with the chapter on financial memorandum yet to be completed. In a situation where the health needs of the people are dependent largely on the unregulated private sector, where there is gross underinvestment in health, where the rate of decline of either infant or maternal mortality has been slow, where there has been a resurgence in communicable diseases, the belief that a credible public health system is the need of the hour is getting increasing recognition. Yet, the UPA government has more or less ignored the existence of this important Bill.
At this moment, public expenditure on health is very low. It is yet to reach the two to three per cent mark of gross domestic product as promised by the previous UPA government. The proposed Bill is a small but significant step. At present, most of the State governments have reacted positively to it and do not perceive it as a threat to their own domains. What is required, however, is a matching financial commitment both by the Centre and the States in order to make the 1978 Alma Ata declaration of Health for All a reality.
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